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Exhibit 10.2
CHANGE OF CONTROL EMPLOYMENT AGREEMENT
AGREEMENT by and between TUPPERWARE CORPORATION, a Delaware
corporation (the "Company") and ________________________ (the
"Executive"), dated as of the ___ day of ________, 19___.
The Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and
its shareholders to assure that the Company will have the
continued dedication of the Executive, notwithstanding the
possibility, threat or occurrence of a Change of Control (as
defined below) of the Company. The Board believes it is
imperative to diminish the inevitable distraction of the
Executive by virtue of the personal uncertainties and risks
created by a pending or threatened Change of Control and to
encourage the Executive's full attention and dedication to the
Company currently and in the event of any threatened or pending
Change of Control, and to provide the Executive with compensation
and benefits arrangements upon a Change of Control which ensure
that the compensation and benefits expectations of the Executive
will be satisfied and which are competitive with those of other
corporations. Therefore, in order to accomplish these
objectives, the Board has caused the Company to enter into this
Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
(a) The "Effective Date" shall be the first date
during the Protection Period (as defined in Section 1(b)) on
which a Change of Control occurs. Anything in this Agreement to
the contrary notwithstanding, if a Change of Control occurs and
if the Executive's employment with the Company is terminated
prior to the date on which the Change of Control occurs, and if
it is reasonably demonstrated by the Executive that such
termination of employment (i) was at the request of a third party
who has taken steps reasonably calculated to effect the Change of
Control or (ii) otherwise arose in connection with or
anticipation of the Change of Control, then for all purposes of
this Agreement the "Effective Date" shall mean the date
immediately prior to the date of such termination of employment.
(b1) The "Protection Period" shall be the period
commencing on the date hereof and ending on the third anniversary
of such date; provided, however, that commencing on the date one
year after the date hereof, and on each annual anniversary of
such date (such date and each annual anniversary thereof shall be
hereinafter referred to as the "Renewal Date"), the Protection
Period shall be automatically extended so as to terminate three
years from such Renewal Date, unless at least 60 days prior to
the
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Renewal Date the Company shall give notice to the Executive that
the Protection Period shall not be so extended.
2. Change of Control. For the purpose of this Agreement,
a "Change of Control" shall mean:
(a) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"))
(a "Person") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of
either (i) the then outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (ii) the
combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities");
provided, however, that for purposes of this subsection (a), the
following acquisitions shall not constitute a Change of Control:
(i) any acquisition directly from the Company, (ii) any
acquisition by the Company, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company or (iv) any
acquisition by any corporation pursuant to a transaction which
complies with clauses (i), (ii) and (iii) of subsection (c) of
this Section 2; or
(b) Individuals who, as of the date hereof, constitute
the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board, provided that any
individual becoming a director subsequent to the date hereof
whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office is in connection
with an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the
Board; or
(c) Consummation by the Company of a reorganization,
merger or consolidation or sale or other disposition of all or
substantially all of the assets of the Company or the acquisition
of assets of another corporation (a "Corporate Transaction"), in
each case, unless, following such Corporate Transaction, (i) all
or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company
Common
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Stock and Outstanding Company Voting Securities immediately prior
to such Corporate Transaction beneficially own, directly or
indirectly, more than 60% of, respectively, the then outstanding
shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation
resulting from such Corporate Transaction (including, without
limitation, a corporation which as a result of such transaction
owns the Company or all or substantially all of the Company's
assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership,
immediately prior to such Corporate Transaction of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be, (ii) no Person (excluding any
employee benefit plan (or related trust) of the Company or such
corporation resulting from such Corporate Transaction)
beneficially owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such Corporate Transaction or the
combined voting power of the then outstanding voting securities
of such corporation except to the extent that such ownership
existed prior to the Corporate Transaction and (iii) at least a
majority of the members of the board of directors of the
corporation resulting from such Corporate Transaction were
members of the Incumbent Board at the time of the execution of
the initial agreement, or at the time of the action of the Board,
providing for such Corporate Transaction; or
(d) Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
3. Employment Period. The Company hereby agrees to
continue the Executive in its employ, and the Executive hereby
agrees to remain in the employ of the Company subject to the
terms and conditions of this Agreement, for the period commencing
on the Effective Date and ending on the third anniversary of such
date (the "Employment Period").
4. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period, (A) the Executive's
position (including status, offices, titles and reporting
requirements), authority, duties and responsibilities shall be at
least commensurate in all material respects with the most
significant of those held, exercised and assigned at any time
during the 90-day period immediately preceding the Effective Date
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and (B) the Executive's services shall be performed at the
location where the Executive was employed immediately preceding
the Effective Date or any office or location less than 35 miles
from the Executive's primary residence immediately prior to such
relocation.
For purposes of Section 4(a)(i)(A) such position, authority,
duties and responsibilities shall be regarded as not commensurate
if, as a result of a Change of Control, (I), the Company becomes
a direct or indirect subsidiary of another corporation or becomes
controlled, directly or indirectly, by an unincorporated entity
(such ultimate parent corporation or unincorporated entity is
hereinafter referred to as a "parent company"), or (II) all or
substantially all of the assets of the Company are acquired by
another corporation or corporations or unincorporated entity or
entities owned or controlled, directly or indirectly, by another
corporation or unincorporated entity (such ultimate parent
corporation or unincorporated entity is also hereinafter referred
to as a "parent company"), unless, in each case, (x) Section 11
(c) of this Agreement shall have been complied with by any such
parent company and (y) the Executive shall have assumed a
position with such parent company and the Executive's position,
authority, duties and responsibilities with such parent company
are at least commensurate in all material respects with the most
significant of those held, exercised and assigned with the
Company at any time during the 90-day period immediately
preceding the Effective Date, or (III) the Company becomes owned
or controlled, directly or indirectly, by more than one other
corporation and/or unincorporated entity, as the case may be,
which are not owned or controlled, directly or indirectly, by a
single parent company or more than one unrelated corporation or
unincorporated entity acquires a significant portion of the
assets of the Corporation and such unrelated corporations or
unincorporated entities, as the case may be, are not owned or
controlled, directly or indirectly, by a single parent company.
(ii) During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is
entitled, the Executive agrees to devote reasonable attention and
time during normal business hours to the business and affairs of
the Company and, to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder, to use the
Executive's reasonable best efforts to perform faithfully and
efficiently such responsibilities. During the Employment Period
it shall not be a violation of this Agreement for the Executive
to (A) serve on corporate, civic or charitable boards or
committees, (B) deliver lectures, fulfill speaking engagements or
teach at
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educational institutions and (C) manage personal investments, so
long as such activities do not significantly interfere with the
performance of the Executive's responsibilities as an employee of
the Company in accordance with this Agreement. It is expressly
understood and agreed that to the extent that any such activities
have been conducted by the Executive prior to the Effective Date,
the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the
Effective Date shall not thereafter be deemed to interfere with
the performance of the Executive's responsibilities to the
Company.
(b) Compensation.
(i) Base Salary. During the Employment Period, the
Executive shall receive an annual base salary ("Annual Base
Salary"), which shall be paid at a monthly rate, at least equal
to twelve times the highest monthly base salary paid or payable,
including any base salary which has been earned but deferred, to
the Executive by the Company and its affiliated companies in
respect of the twelve-month period immediately preceding the
month in which the Effective Date occurs. During the Employment
Period, the Annual Base Salary shall be reviewed at least
annually and shall be increased at any time and from time to time
as shall be substantially consistent with increases in base
salary generally awarded in the ordinary course of business to
other peer executives of the Company and its affiliated
companies. Any increase in Annual Base Salary shall not serve to
limit or reduce any other obligation to the Executive under this
Agreement. Annual Base Salary shall not be reduced after any
such increase and the term Annual Base Salary as utilized in this
Agreement shall refer to Annual Base Salary as so increased. As
used in this Agreement, the term "affiliated companies" shall
include any company controlled by, controlling or under common
control with the Company.
(ii) Incentive Awards. In addition to Annual Base
Salary, the Executive shall be awarded, for each fiscal year
ending during the Employment Period, an annual incentive award
(the "Annual Incentive Award") and a long-term incentive award
(the "Long-Term Cash Incentive Award" and together with the
Annual Incentive Award, the "Incentive Awards") in cash at least
equal to the average annualized (for any fiscal year consisting
of less than twelve full months or with respect to which the
Executive has been employed by the Company for less than twelve
full months) annual incentive award and long-term cash incentive
award, respectively (together, the "Recent Incentive Awards"),
paid or payable, including by reason of any deferral, to the
Executive by the Company and its affiliated companies in respect
of the three fiscal
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years immediately preceding the fiscal year in which the
Effective Date occurs; provided, however, that for any year of
such three-year period in which the actual incentive awards were
less than the target level of such incentive awards, then the
target levels of such incentive awards shall be used for purposes
of the foregoing formula. Each such Annual Incentive Award and
Long-Term Cash Incentive Award shall be paid no later than the
end of the third month of the fiscal year next following the
fiscal year for which the Annual Incentive Award or the Long-
Term Cash Incentive Award, as the case may be, is awarded, unless
the Executive shall elect to defer the receipt of such Annual
Incentive Award or Long-Term Cash Incentive Award.
(iii) Profit Sharing, Thrift, Savings and Pension
Plans. In addition to Annual Base Salary and Incentive Awards
payable as hereinabove provided, the Executive shall be entitled
to participate during the Employment Period in all profit
sharing, thrift, savings and pension plans, practices, policies
and programs generally applicable to other peer executives of the
Company and its affiliated companies, but in no event shall such
plans, practices, policies and programs provide the Executive
with profit sharing opportunities (measured with respect to both
regular and special profit sharing opportunities), thrift
opportunities, savings opportunities and pension benefits
opportunities, in each case, less favorable, in the aggregate,
than the most favorable of those provided by the Company and its
affiliated companies for the Executive under such plans,
practices, policies and programs as in effect at any time during
the 90-day period immediately preceding the Effective Date or if
more favorable to the Executive, those provided generally at any
time after the Effective Date to other peer executives of the
Company and its affiliated companies.
(iv) Welfare Benefit Plans. During the Employment
Period, the Executive and/or the Executive's family, as the case
may be, shall be eligible for participation in and shall receive
all benefits under welfare benefit plans, practices, policies and
programs provided by the Company and its affiliated companies
(including, without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life,
accidental death and travel accident insurance plans and
programs) to the extent generally applicable to other peer
executives of the Company and its affiliated companies, but in no
event shall such plans, practices, policies and programs provide
benefits which are less favorable, in the aggregate, than the
most favorable of such plans, practices, policies and programs in
effect for the Executive at any time during the 90-day period
immediately preceding the Effective Date or if more favorable to
the Executive, those
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provided generally at any time after the Effective Date to other
peer executives of the Company and its affiliated companies.
(v) Expenses. During the Employment Period, the
Executive shall be entitled to receive prompt reimbursement for
all reasonable expenses incurred by the Executive in accordance
with the most favorable policies, practices and procedures of the
Company and its affiliated companies in effect for the Executive
at any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in
effect at any time thereafter generally with respect to other
peer executives of the Company and its affiliated companies.
(vi) Perquisites. During the Employment Period, the
Executive shall be entitled to perquisites in accordance with the
most favorable plans, practices, programs and policies of the
Company and its affiliated companies in effect for the Executive
at any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in
effect at any time thereafter generally with respect to other
peer executives of the Company and its affiliated companies.
(vii) Office and Support Staff. During the Employment
Period, the Executive shall be entitled to an office or offices
of a size and with furnishings and other appointments, and to
exclusive personal secretarial and other assistance, at least
equal to the most favorable of the foregoing provided to the
Executive by the Company and its affiliated companies at any time
during the 90-day period immediately preceding the Effective Date
or, if more favorable to the Executive, as provided at any time
thereafter generally with respect to other peer executives of the
Company and its affiliated companies.
(viii) Vacation. During the Employment Period, the
Executive shall be entitled to paid vacation in accordance with
the most favorable plans, policies, programs and practices of the
Company and its affiliated companies as in effect for the
Executive at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as in effect at any time thereafter generally with
respect to other peer executives of the Company and its
affiliated companies.
5. Termination of Employment.
(a) Death or Disability. The Executive's employment
shall terminate automatically upon the Executive's death during
the Employment Period. If the Company determines in good faith
that
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the Disability of the Executive has occurred during the
Employment Period (pursuant to the definition of "Disability" set
forth below), it may give to the Executive written notice in
accordance with Section 12(b) of this Agreement of its intention
to terminate the Executive's employment. In such event, the
Executive's employment with the Company shall terminate effective
on the 30th day after receipt of such notice by the Executive
(the "Disability Effective Date"), provided that, within the 30
days after such receipt, the Executive shall not have returned to
full-time performance of the Executive's duties. For purposes of
this Agreement, "Disability" means the absence of the Executive
from the Executive's duties with the Company on a substantially
full-time basis for 180 consecutive business days as a result of
incapacity due to mental or physical illness which is determined
to be total and permanent by a physician selected by the Company
or its insurers and acceptable to the Executive or the
Executive's legal representative (such agreement as to
acceptability not to be withheld unreasonably).
(b) Cause. The Company may terminate the Executive's
employment during the Employment Period for Cause. For purposes
of this Agreement, "Cause" shall mean:
(i) the willful and continued failure of the Executive
to perform substantially the Executive's duties with the Company
or one of its affiliates (other than any such failure resulting
from incapacity due to physical or mental illness), after a
written demand for substantial performance is delivered to the
Executive by the Board or the Chief Executive Officer of the
Company which specifically identifies the manner in which the
Board or Chief Executive Officer believes that the Executive has
not substantially performed the Executive's duties, or
(ii) the willful engaging by the Executive in illegal
conduct or gross misconduct which is materially and demonstrably
injurious to the Company.
For purposes of this provision, no act or failure to act, on the
part of the Executive, shall be considered "willful" unless it is
done, or omitted to be done, by the Executive in bad faith or
without reasonable belief that the Executive's action or omission
was in the best interests of the Company. Any act, or failure to
act, based upon authority given pursuant to a resolution duly
adopted by the Board or upon the instructions of the Chief
Executive Officer or a senior officer of the Company or based
upon the advice of counsel for the Company shall be conclusively
presumed to be done, or omitted to be done, by the Executive in
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good faith and in the best interests of the Company. The
cessation of employment of the Executive shall not be deemed to
be for Cause unless and until there shall have been delivered to
the Executive a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters of the entire
membership of the Board at a meeting of the Board called and held
for such purpose (after reasonable notice is provided to the
Executive and the Executive is given an opportunity, together
with counsel, to be heard before the Board), finding that, in the
good faith opinion of the Board, the Executive is guilty of the
conduct described in subparagraph (i) or (ii) above, and
specifying the particulars thereof in detail.
(c) Good Reason; Window Period. The Executive's
employment may be terminated (i) during the Employment Period by
the Executive for Good Reason or (ii) during the Window Period by
the Executive for any reason or for no reason. For purposes of
this Agreement, the "Window Period" shall mean that 30-day period
immediately following the first anniversary of the Effective
Date. For purposes of this Agreement, "Good Reason" shall mean
(i) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's position
(including status, offices, titles and reporting requirements),
authority, duties or responsibilities as contemplated by Section
4(a) of this Agreement, or any other action by the Company which
results in a diminution in such position, authority, duties or
responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and
which is remedied by the Company promptly after receipt of notice
thereof given by the Executive;
(ii) any failure by the Company to comply with any of
the provisions of Section 4(b) of this Agreement, other than an
isolated, insubstantial and inadvertent failure not occurring in
bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive;
(iii) the Company's requiring the Executive to be
based at any office or location other than that described in
Section 4(a)(i)(B) hereof;
(iv) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by
this Agreement; or
(v) any failure by the Company or any successor to
comply with and satisfy Section 11(c) of this Agreement, provided
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that such successor has received at least ten days prior written
notice from the Company or the Executive of the requirements of
Section 11(c) of this Agreement.
For purposes of this Section 5(c), any good faith determination
of "Good Reason" made by the Executive shall be conclusive.
(d) Notice of Termination. Any termination by the
Company for Cause, or by the Executive during the Window Period
or for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with
Section 12(b) of this Agreement. For purposes of this Agreement,
a "Notice of Termination" shall mean a written notice which (i)
indicates the specific termination provision in this Agreement
relied upon, (ii) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide
a basis for termination of the Executive's employment under the
provision so indicated and (iii) if the Date of Termination (as
defined below) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than
fifteen days after the giving of such notice). The failure by
the Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause, as the case may be, shall not
waive any right of the Executive or the Company, respectively,
hereunder or preclude the Executive or the Company, respectively,
from asserting such fact or circumstance in enforcing the
Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" shall
mean (i) if the Executive's employment is terminated by the
Company for Cause, or by the Executive during the Window Period
or for Good Reason, the date of receipt of the Notice of
Termination or any later date specified therein, as the case may
be, (ii) if the Executive's employment is terminated by the
Company other than for Cause, Disability or death, the Date of
Termination shall be the date on which the Company notifies the
Executive of such termination, and (iii) if the Executive's
employment is terminated by reason of death or Disability, the
Date of Termination shall be the date of death of the Executive
or the Disability Effective Date, as the case may be.
6. Obligations of the Company upon Termination. (a) Good
Reason or during the Window Period; Other than for Cause or
Disability. If, during the Employment Period, the Company shall
terminate the Executive's employment other than for Cause or
Disability or the Executive shall terminate employment either for
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Good Reason or during the Window Period, the Company shall have
the following obligations.
(i) The Company shall pay to the Executive in a lump
sum in cash within 30 days after the Date of Termination the
aggregate of the following amounts:
(A) the amount equal to the product of (x) three and
(y) the sum of the Executive's Annual Base Salary and the
Executive's Highest Incentive Award; provided, however, that such
amount shall be paid in lieu of, and the Executive hereby waives
the right to receive, any other amount of severance relating to
salary or bonus continuation to be received by the Executive upon
such termination of employment under any severance plan, policy
or arrangement of the Company; and
(B) the amount equal to the product of (x) the sum of
the maximum Annual Incentive Award and the maximum Long-Term
Incentive Award that would have been available to the Executive
under the applicable incentive plans of the Company and the
policies and procedures thereunder for the fiscal year of the
Company in which the Change of Control occurs or, if greater, the
fiscal year in which the Date of Termination occurs and (y) a
fraction, the numerator of which is the number of days in the
current fiscal year through the Date of Termination, and the
denominator of which is 365; and
(C) the amount of the Executive's Annual Base Salary
through the Date of Termination to the extent not theretofore
paid and the amount of any compensation previously deferred by
the Executive (together with any accrued interest thereon) and
not yet paid by the Company and any accrued vacation pay of the
Executive not yet paid by the Company.
For purposes of this Agreement, the aggregate of the amounts
described in clauses (A), (B) and (C) of this Section 6(a) shall
hereafter be referred to as the "Special Termination Amount" and
the term "Highest Annual Award" shall mean the greater of (1) the
sum of the Annual Incentive Award and the Long-Term Incentive
Award paid or payable, including by reason of any deferral, to
the Executive (and annualized for any fiscal year consisting of
less than twelve full months or for which the Executive has been
employed for less than twelve full months) for the most recently
completed fiscal year during the Employment Period, if any, and
(2) the Recent Incentive Awards. The sum of the amounts
described in clauses (B) and (C) of this Section 6(a) shall be
hereinafter referred to as the "Accrued Obligations".
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(ii) For the remainder of the Employment Period, or
such longer period as any plan, program, practice or policy may
provide, the Company shall continue benefits to the Executive
and, where applicable, the Executive's family at least equal to
those which would have been provided to them in accordance with
the plans, programs, practices and policies described in Section
4(b)(iv) of this Agreement if the Executive's employment had not
been terminated in accordance with the most favorable plans,
practices, programs or policies of the Company and its affiliated
companies generally applicable to other peer executives and their
families during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in
effect at any time thereafter generally with respect to other
peer executives of the Company and its affiliated companies and
their families (for purposes of determining eligibility of the
Executive for retiree benefits pursuant to such plans, practices,
programs and policies, the Executive shall be considered to have
remained employed until the end of the Employment Period and to
have retired on the last day of such period); provided, however,
that with respect to medical benefits, the Company shall
continue, for the lifetime of the Executive, medical benefits for
the Executive and the Executive's family no less favorable than
the medical benefits provided to the Executive under the
Tupperware Corporation Benefits Plan (or any successor plan
thereto) during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in
effect at any time thereafter generally with respect to any other
peer executives of the Company and its affiliated companies and
their families; and, provided, further, that, in the event the
Executive becomes reemployed with another employer and is
eligible to receive medical or other welfare benefits under any
employer provided plan, the medical and other welfare benefits
described herein shall not be provided by the Company during such
applicable period of eligibility, but shall resume if such period
of eligibility shall terminate.
(iii) To the extent not theretofore paid or provided,
the Company shall timely pay or provide to the Executive any
other amounts or benefits required to be paid or provided or
which the Executive is eligible to receive under any plan,
program, policy or practice or contract or agreement of the
Company and its affiliated companies (such other amounts and
benefits shall be hereinafter referred to as the "Other
Benefits").
(b) Death. If the Executive's employment is
terminated by reason of the Executive's death during the
Employment Period, this Agreement shall terminate without further
obligations to the
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Executive's legal representatives under this Agreement, other
than the payment by the Company of the Special Termination
Amount, provided however, that the amount of such payment
determined under Section 6(a)(i)(A) shall be adjusted as follows.
The amount set forth in clause (A) shall be offset in all cases
by the basic life insurance benefit paid or payable in respect of
the Executive's death and, in addition, if the death occurs after
the one year anniversary following the Change of Control, it
shall be offset by the amount of any salary payments made to the
Executive for any periods of employment following the Change of
Control. The Special Termination Amount shall be paid to the
Executive's estate or beneficiary, as applicable, in a lump sum
in cash within 30 days of the Date of Termination. Anything in
this Agreement to the contrary notwithstanding, the Executive's
family shall be entitled to receive benefits at least equal to
the most favorable benefits provided generally by the Company and
any of its affiliated companies to surviving families of peer
executives of the Company and such affiliated companies under
such plans, programs, practices and policies relating to family
death benefits, if any, as in effect generally with respect to
other peer executives and their families at any time during the
90-day period immediately preceding the Effective Date or, if
more favorable to the Executive and/or the Executive's family, as
in effect on the date of the Executive's death generally with
respect to other peer executives of the Company and its
affiliated companies and their families.
(c) Disability. If the Executive's employment is
terminated by reason of the Executive's Disability during the
Employment Period, this Agreement shall terminate without further
obligations to the Executive, other than the payment by the
Company of the Special Termination Amount. The Special
Termination Amount shall be paid to the Executive in a lump sum
in cash within 30 days of the Date of Termination. Anything in
this Agreement to the contrary notwithstanding, the Executive
shall be entitled after the Disability Effective Date to receive
disability and other benefits at least equal to the most
favorable of those generally provided by the Company and its
affiliated companies to disabled executives and/or their families
in accordance with such plans, programs, practices and policies
relating to disability, if any, as in effect generally with
respect to other peer executives and their families at any time
during the 90-day period immediately preceding the Effective Date
or, if more favorable to the Executive and/or the Executive's
family, as in effect at any time thereafter through the Date of
Termination generally with respect to other peer executives of
the Company and its affiliated companies and their families.
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(d) Cause; Other than for Good Reason or during the
Window Period. If the Executive's employment shall be terminated
for Cause during the Employment Period, this Agreement shall
terminate without further obligations to the Executive other than
the obligation to pay to the Executive Annual Base Salary through
the Date of Termination plus the amount of any compensation
previously deferred by the Executive, in each case to the extent
theretofore unpaid. If the Executive terminates employment
during the Employment Period, excluding a termination either for
Good Reason or without any reason during the Window Period, this
Agreement shall terminate without further obligations to the
Executive, other than for the Accrued Obligations, all of which
such Accrued Obligations shall be paid to the Executive in a lump
sum in cash within 30 days of the Date of Termination.
7. Non-exclusivity of Rights. Except as explicitly
modified or otherwise explicitly provided by this Agreement, (i)
nothing in this Agreement shall prevent or limit the Executive's
continuing or future participation in any benefit, bonus,
incentive or other plans, programs, policies or practices
provided by the Company or any of its affiliated companies and
for which the Executive may qualify, nor shall anything herein
limit or otherwise affect such rights as the Executive may have
under any other agreements with the Company or any of its
affiliated companies and (ii) amounts which are vested benefits
or which the Executive is otherwise entitled to receive under any
plan, policy, practice or program of the Company or any of its
affiliated companies at or subsequent to the Date of Termination
shall be payable in accordance with such plan, policy, practice
or program except as explicitly modified by this Agreement.
8. Full Settlement. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform
its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action
which the Company may have against the Executive or others. In
no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of
this Agreement and, except as provided in Section 6(d)(ii) of
this Agreement, such amounts shall not be reduced whether or not
the Executive obtains other employment. The Company agrees to
pay, to the full extent permitted by law, all legal fees and
expenses which the Executive may reasonably incur as a result of
any contest (regardless of the outcome thereof) by the Company,
the Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement or any guarantee
of performance thereof (including
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as a result of any contest by the Executive about the amount of
any payment pursuant to this Agreement), plus in each case
interest on any delayed payment at the applicable Federal rate
provided for in Section 7872(f)(2)(A) of the Internal Revenue
Code of 1986, as amended (the "Code").
9. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that as a
result, directly or indirectly, of any payment or distribution by
the Company to or for the benefit of the Executive, whether paid
or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise (a "Payment"), the Executive would
be subject to the excise tax imposed by Section 4999 of the Code
or any interest or penalties are incurred by the Executive with
respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then the Executive shall be
entitled to promptly receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by the Executive
of all taxes (including any interest or penalties imposed with
respect to such taxes), including, without limitation, any income
taxes (and any interest and penalties imposed with respect
thereto) and Excise Tax imposed upon the Gross-Up Payment, but
excluding any income taxes on the Payment, the Executive is in
the same after-tax position as if no Excise Tax had been imposed
upon the Executive.
(b) Subject to the provisions of Section 9(c), all
determinations required to be made under this Section 9,
including whether or when a Gross-Up Payment is required and the
amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determinations, shall be made by the
accounting firm of PriceWaterhouseCoopers LLP (the "Accounting
Firm") which shall provide detailed supporting calculations both
to the Company and the Executive within 15 business days of
receipt of notice from the Executive that there has been a
Payment or such earlier time as is requested by the Company. In
the event that the Accounting Firm is serving as accountant or
auditor for the individual, entity or group effecting the Change
of Control, the Executive shall appoint another nationally
recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any Gross-
Up Payment, as determined pursuant to this Section 9, shall be
paid to the Executive within five days of the receipt of the
Accounting Firm's determination. If the Accounting
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Firm determines that no Excise Tax is payable by the Executive,
it shall furnish the Executive with a written opinion that
failure to report the Excise Tax on the Executive's applicable
federal income tax return would not result in the imposition of a
negligence or similar penalty. Any determination by the
Accounting Firm shall be binding upon the Company and the
Executive. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should have
been made ("Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Company
exhausts its remedies pursuant to Section 9(c) and the Executive
thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly
paid by the Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing
of any claim by the Internal Revenue Service that, if successful,
would require the payment by the Company of the Gross-Up Payment.
Such notification shall be given as soon as practicable but no
later than ten business days after the Executive knows of such
claim and shall apprise the Company of the nature of such claim
and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the
30-day period following the date on which it gives such notice to
the Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the
Company notifies the Executive in writing prior to the expiration
of such period that it desires to contest such claim, the
Executive shall:
(i) give the Company any information reasonably
requested by the Company relating to such claim,
(ii) take such action in connection with contesting
such claim as the Company shall reasonably request in writing
from time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney
reasonably selected by the Company,
(iii) cooperate with the Company in good faith in
order effectively to contest such claim, and,
(iv) permit the Company to participate in any
proceedings relating to such claim;
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provided, however, that the Company shall bear and pay directly
all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall
indemnify and hold the Executive harmless, on an after-tax basis,
for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this Section 9(c), the
Company shall control all proceedings taken in connection with
such contest and, at its sole option, may pursue or forgo any and
all administrative appeals, proceedings, hearings and conferences
with the taxing authority in respect of such claim and may, at
its sole option, either direct the Executive to pay the tax
claimed and sue for a refund or contest the claim in any
permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in
a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however, that
if the Company directs the Executive to pay such claim and sue
for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis and shall
indemnify and hold the Executive harmless, on an after-tax basis,
from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such
advance or with respect to any imputed income with respect to
such advance; and further provided that any extension of the
statute of limitations relating to payment of taxes for the
taxable year of the Executive with respect to which such
contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Company's control of the
contest shall be limited to issues with respect to which a Gross-
Up Payment would be payable hereunder and the Executive shall be
entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by the Executive of an
amount advanced by the Company pursuant to Section 9(c), the
Executive becomes entitled to receive any refund with respect to
such claim, the Executive shall (subject to the Company's
complying with the requirements of Section 9(c)) promptly pay to
the Company the amount of such refund (together with any interest
paid or credited thereon after taxes applicable thereto). If,
after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 9(c), a determination is made that
the Executive shall not be entitled to any refund with respect to
such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to
the expiration of 30 days
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after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up
Payment required to be paid.
10. Confidential Information. The Executive shall hold in
a fiduciary capacity for the benefit of the Company all secret or
confidential information, knowledge or data relating to the
Company or any of its affiliated companies, and their respective
businesses, which shall have been obtained by the Executive
during the Executive's employment by the Company or any of its
affiliated companies and which shall not be or become public
knowledge (other than by acts by the Executive or representatives
of the Executive in violation of this Agreement). After
termination of the Executive's employment with the Company, the
Executive shall not, without the prior written consent of the
Company or as may otherwise be required by law or legal process,
communicate or divulge any such information, knowledge or data to
anyone other than the Company and those designated by it. In no
event shall an asserted violation of the provisions of this
Section 10 constitute a basis for deferring or withholding any
amounts otherwise payable to the Executive under this Agreement.
11. Successors. (a) This Agreement is personal to the
Executive and without the prior written consent of the Company
shall not be assignable by the Executive otherwise than by will
or by application of the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and
be binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or
assets of the Company to assume expressly and agree to perform
this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had
taken place. As used in this Agreement, "Company" shall mean
the Company as hereinbefore defined and any successor to its
business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
12. Miscellaneous. (a) This Agreement shall be governed
by and construed in accordance with the laws of the State of
Delaware, without reference to principles of conflict of laws.
The captions
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of this Agreement are not part of the provisions hereof and shall
have no force or effect. This Agreement may not be amended or
modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal
representatives.
(b) All notices and other communications hereunder
shall be in writing and shall be given by hand delivery to the
other party or by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive:
___________________________
c/o Tupperware Corporation
14901 South Orange Blossom Trail
Orlando, Florida 32837
If to the Company:
Tupperware Corporation
14901 South Orange Blossom Trail
Orlando, Florida 32802
Attention: General Counsel
Mailing Address:
P.O. Box 2353
Orlando, Florida 32802-2353
or to such other address as either party shall have furnished to
the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by the
addressee.
(c) The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
(d) The Company may withhold from any amounts payable
under this Agreement such Federal, state or local taxes as shall
be required to be withheld pursuant to any applicable law or
regulation.
(e) The Executive's or the Company's failure to insist
upon strict compliance with any provision hereof shall not be
deemed to be a waiver of such provision or any other provision of
this Agreement.
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(f) The Executive and the Company acknowledge that,
except as may otherwise be provided under any other written
agreement between the Executive and the Company, the employment
of the Executive by the Company is "at will" and, subject to
Section 1(a) hereof, prior to the Effective Date, may be
terminated by either the Executive or the Company at any time.
Moreover, if prior to the Effective Date, the Executive's
employment with the Company terminates, then the Executive shall
have no further rights under this Agreement. From and after the
Effective Date this Agreement shall supersede any other agreement
between the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization from its
Board of Directors, the Company has caused these presents to be
executed in its name on its behalf, all as of the day and year
first above written.
(Executive)
TUPPERWARE CORPORATION
By
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